Public comment to the U.S. Department of the Interior on the review of certain National Monuments established under the Antiquities Act of 1906.
The December 28, 2016, designation of 1.35 million acres of federal land in southeastern Utah as the Bears Ears National Monument is highly controversial. Groups for and against the monument have tried and will continue to try to sway political process in their favor. There are, however, two questions more fundamental than who wins the ongoing political battle:
Are National Monuments still necessary?
There are a number of factors that call into question whether the national monument designation is still a necessary means to protect antiquities.
If Bears Ears remains, how can it be best managed?
Even though the National Park Service aspires to protect antiquities and cultural resources, it’s ill-equipped to do so because it is already stretched too thin.
Stronger Role for Native Americans
Meaningful authority for Native Americans would give them legally binding management of or even property rights to the antiquities sites in the Bears Ears. One such option is an exclusive franchise to manage the region’s antiquities on federal land, which is appealing because it would:
- Result in higher quality conservation of antiquities and archaeological sites
- Confer strong and durable rights to Native Americans
- Provide a transparent mechanism for governance and fund raising
A franchise model for Bears Ears would also ideally include the following actions:
- Tailor the area protected to the actual antiquities sites
- Perform a thorough antiquities survey
- Empower Native Americans by allowing them to control access and retain 100 percent of income generated from visitors
- Allow for clear, transparent management, in the form of a non-profit organization
- Be subject to rigorous standards established by the federal government
- Provide training
- Confer clear recognition of Native Americans that have historical ties to the Bears Ears region
Establishing Franchise Grantee(s)
A crucial part of creating a franchise for Bears Ears would involve identifying the Native Americans who would become franchisees. This could prove difficult based on current divisions between Native Americans who claim rights in or attachment to the Bears Ears region. Some sort of fair and transparent process is necessary to sort out competing Native American claims to antiquities on federal land. The court system, whether civil or federal administrative, would not be a fitting venue because of the prospect of long-term litigation. A better way to establish franchisees would be through alternative dispute resolution, such as mediation or binding arbitration.
